Common Challenges to Wills and How to Avoid Them

By Chris Tymchuck
Founding Attorney

Estate planning is so important to protect your legacy and promote the best interests of your loved ones. Estate planning the right way, however, is critical. For instance, drafting your estate planning documents, such as your will, in a way that safeguards it from future will contests can help ensure your wishes are honored and avoid fighting amongst your family and loved ones after you are gone. To help this happen, we will detail some of the more common challenges wills can face and how you can avoid them.

Common Challenges to Wills and How to Avoid Them

Those with a vested interest in an estate, such as family members and other potential heirs, are within their rights to bring challenges to the validity and contents of a will during probate proceedings. A challenge to a will may be brought, and usually is brought, as a result of a family member not being pleased with the contents of the will. They may have thought someone else shouldn’t be allowed to inherit something or that they themselves should be inheriting more. Regardless, a will contest can turn messy, fast. It is in everyone’s best interests to try and avoid them upfront.

A will challenge may be brought if there is another will in existence. It is not uncommon for multiple will drafts to be found after a person dies. Over the course of a lifetime, a person may have changed their minds and the multiple will drafts were the result of that. It can cause a lot of confusion and heirs may begin to fight in favor of whatever will provides them with the most favorable inheritance. To help avoid this conflict up front, date each version of your will. Add a clause in your will stating that the most current version revokes all previous versions.

Failure to observe requisite will formalities is another common challenge. In other words, your will is not valid because you did not comply with legal requirements when creating it. For instance, a will must be signed in the presence of witnesses. It must be signed by the person creating the will in acknowledgment that they know the consequences of the will’s contents. If the required formalities prescribed by law are not observed, the will’s validity can be challenged later on. The way to avoid this is, of course, to observe all the legal requirements needed to require a valid will.

Lack of testamentary capacity is another common will challenge. This is an assertion that the creator of the will lacked the mental capacity to understand the contents and nature of their last will and testament when they signed it. A person with Alzheimer’s or dementia runs the risk of such a challenge. The best way to avoid this is to create your will as soon as possible while you are in good health.

Undue influence challenges are also common. An assertion of undue influence means that the person challenging your will’s validity believes that another person exerted such a level of influence on the will’s creator that their own wishes were substituted for that of the creator. Although not uncommonly asserted, undue influence is very difficult to prove. This is especially true considering that the person with the best information on this situation is the deceased. Regardless, the challenge itself can cause problems. To help avoid it, always restrict those who go with you to your attorney’s office during the estate planning process. In fact, try to go on your own or just with your spouse.

Minnesota Estate Planning Attorney

Unique Estate Law is here to create solid, trustworthy estate planning documents that you can count on. Contact us today. From within Hennepin County Unique Estate Law represents clients throughout Minnesota, including Minneapolis, Bloomington, St. Louis Park, Minnetonka, Wayzata, Chanhassen, and Excelsior.

About the Author
As a Minneapolis Estate Planning and Probate attorney I help build and protect families through the adoption, estate planning, and probate processes. I also have experience working with families on issues related to their small businesses. I know how difficult it is to find time to plan for the future and I am here to help walk you through it.